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A Constitutional History of the United States
Chapter XLVII - Reconstruction III: The Union Restored; Carpetbaggers and Federal Troops
by McLaughlin, Andrew C.
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During the summer and autumn of 1868, after the acquittal of the
President, the process of Reconstruction — to give it an honorable name
— went merrily on. The extremists in Congress were for a time in a very
bad temper, but they had everything their own way. Stevens died in August, and
for a considerable time Ben Butler stood forth as the conspicuous rebel-hunter
in the House, a fact which seems to mark the low tide of congressional
history.
The Reconstruction measures had been carefully prepared to make certain
the predominance in the states of those persons who would support the
congressional plan. In addition to the negroes, absolutely unfamiliar with
political matters and most of them utterly uneducated, there were in the south
some whites who were eager to take part in the joyous job of carrying out the
congressional policy. Some of these men were northerners — the
"carpetbaggers" — who had followed in the train of the union army or who
after the war had drifted into the south in search of adventure and profit;
some of them were by no means without brains and conscience, but there were
many not thus encumbered. There were a few southern whites of intelligence and
of practical political experience who took active part in constitution-making
and appear to have been influential in keeping out of the constitutions some of
the more foolish and extravagant proposals. The class most detested by the
conservative elements was made up of "turncoat" whites who came to be known as
"scalawags", men of southern birth, many of them without either the training or
the character to fit them for official tasks. Though a few of the negroes were
clever and shrewd, if not wise, and though there was here and there one capable
and eloquent, the majority of the freedmen were, of course, ludicrously
incompetent. The wonder is that the result of the conventions was not an
absolute travesty of anything even masquerading as the work of statesmen; but,
as a matter of fact, the constitutions, when framed, were not grotesque, unless
a document is grotesque which bestows the suffrage on men of abysmal
ignorance.
As the ruthless process of Reconstruction went on, a question arose
(1868) which threatened seriously the congressional program. A certain William
H. McCardle had been arrested by a military authority and held for trial before
a military commission. Having sought release by a writ of habeas corpus, and
having failed, he appealed to the Supreme Court. If the Court should adhere to
the doctrine of the Milligan case, it would in all likelihood announce the
unconstitutionality of military tribunals in the south; at least the danger of
such a decision was too great to be suffered calmly; and so; to prevent
judicial interference with the congressional policy, a bill repealing certain
portions of a previous act was passed, withdrawing from the Court the authority
to entertain appeals of this sort. The bill was vetoed by Johnson; but the veto
was of course futile, and the McCardle case was dismissed by the Court because
of want of jurisdiction.[1] The episode is illustrative of the
high-handed and arrogant determination of the Radical leaders, and is a
conspicuous example of the way in which Congress, with an ample majority in
control, may be able to override the other departments and can, if the
emergency supply the incentive, cast into the waste-paper basket all
inconvenient theories of checks and balances and similar uncomfortable
doctrines.
June 22, 1868, a bill admitting Arkansas to representation in Congress
was passed over the President's veto. When Congress began in 1865 to oppose
Johnson's plans, it relied for its immediate power on its constitutional
authority to pass upon the elections and qualifications of its own members;
from that position it went forward to prescribe the whole process of
Reconstruction. When it came now to the final steps, the recognition or the
restoration of the reconstructed states, Congress did not entirely forget its
first position. The Arkansas Act said that, as the people, in accordance with
the acts of Congress, had adopted a constitution which was republican and the
legislature had adopted the fourteenth amendment, the state was "entitled and
admitted to representation in Congress, as one of the States of the Union...."
Although, as far as affirmative legislation is concerned, this declaration of
admission to representation was the substance of the bill, it was nevertheless,
sent to the President, as if it were an act for the admission of a territory
into the union; nothing more clearly exposes the abnormality of the whole
process of Reconstruction constitutionally considered. The Constitution, said
Johnson in his veto message — probably not without a certain sardonic
satisfaction — , "makes each House 'the judge of the elections, returns,
and qualifications of its own members,' and therefore all that is now necessary
to restore Arkansas in all its constitutional relations to the Government is a
decision by each House upon the eligibility of those who, presenting their
credentials, claim seats in the respective Houses of Congress." "If ...
Arkansas is a State in the Union," he also said, "no legislation is necessary
to declare it entitled 'to representation in Congress as one of the States of
the Union.' "
Arkansas was allowed representation in Congress "upon the following
fundamental condition: That the constitution of Arkansas shall never be so
amended or changed as to deprive any citizen or class of citizens of the United
States of the right to vote who are entitled to vote by the constitution herein
recognized". There were minor provisions not here important. Did this condition
mean to imply the right or the intention of Congress to cast the state out of
the union or to refuse admission of its elected representatives at any time in
the future, if the basis of suffrage were altered? Such an intention seems
scarcely possible; but if there was to be no penalty for disobedience to the
"fundamental condition", the folly of prescribing it is apparent. Shortly after
the restoration of Arkansas, the President announced that six other states had
fulfilled the requirements prescribed by Congress — North Carolina, South
Carolina, Georgia, Alabama, Florida, and Louisiana. New difficulties arose in
Georgia, and, as a consequence, that state was not granted full representation
until two years later. At this later time also (1870), the remaining states
still lying beyond the pale were readmitted or restored — or whatever may
be the proper word for describing the whole strange and abnormal process.
On July 20, 1868, Seward issued a preliminary statement declaring the
fourteenth amendment had been adopted by twenty-three states. These states were
unquestionably exercising their full functions in the union. It also appeared,
the proclamation said, that the amendment had been ratified "by
newly-constituted and newly-established bodies avowing themselves to be, and
acting as, the legislatures, respectively, of the States of Arkansas, Florida,
North Carolina, Louisiana, South Carolina, and Alabama...." Two of the states,
New Jersey and Ohio, enumerated among the twenty-three states mentioned above,
had withdrawn their consent; it was a matter of doubt whether resolutions of
withdrawal were valid or not. If the ratifying resolutions of these two states
were, notwithstanding their subsequent resolutions of withdrawal, considered in
full effect, then the amendment had been ratified by the requisite number.
There is no need of our allowing ourselves to be smothered by the fogs
of Reconstruction metaphysics, but can a state, which is not a state and not
recognized as such by Congress, perform the supreme duty of ratifying an
amendment to the fundamental law? Or does a state — by congressional
thinking — cease to be a state for some purposes, but not for others? If
the states were no longer states but, as Stevens had asserted, conquered
territory, were they competent to amend the Constitution as a condition
to admission? Or, if they had committed suicide, and had become territories,
were they still sufficiently alive to perform this solemn function of
statehood? Congress had no qualms, but passed a resolution naming all of the
six southern states as well as Ohio and New Jersey, declaring the fourteenth
amendment a part of the Constitution, and ordering its promulgation by the
Secretary of State. Formal pronouncement of ratification was made by Seward on
July 28, 1868.
The action of the federal authorities in denying by direct implication
the right of a state to rescind a favorable vote stands as a precedent, and
probably is based on good legal grounds. The most substantial basis for
asserting the illegality of withdrawal of approval is that, when a state has
acted and officially announced its decision, the subject has passed out of its
hands; for this particular job its duty is finished. There appears, however, to
be reason for acknowledging a state's right to withdraw a vote rejecting an
amendment and to substitute a vote of ratification.[2]
The fourteenth amendment and the "fundamental conditions" prescribed at
the time of the readmission of the states were not enough to satisfy Congress;
the southern whites, determined not to be ruled — if ruling it might be
called — by the ignorant blacks and carpetbaggers, might find a way to
avoid the conditions and spurn the imposed restrictions. Moreover, suffrage
reform was in the air. Woman suffrage was discussed with a new intensity. Some
zealots were anxious to go much further; there seemed, indeed, to be a belief
occupying otherwise vacant space in many minds that the earth could be purified
and regenerated, if only enough people were allowed to vote; if ignorant
freedmen just relieved from bondage could be transformed into competent
citizens, why was it not wise to bestow the blessings of the ballot upon
everyone? [3] Even at the north there was difference of opinion on
the advisability of granting negro suffrage. Some of the states had refused or
neglected to alter their constitutional provisions; but Congress decided to
act. A constitutional amendment, the fifteenth, was passed (February, 1869) and
submitted to the states: "1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or any State on account of
race, color, or previous condition of servitude. 2. The Congress shall have
power to enforce by appropriate legislation the provisions of this article."
March 30, 1870, the Secretary of State announced the ratification of the
amendment by twenty-nine states.[4] Three of the states listed as
ratifying the amendment were not, in congressional theory, fully restored when
they participated in the solemn task of amending the Constitution. The southern
states might still keep the negro from voting, but not legally by any provision
explicitly directed to that end. That the amendment has at any time been
beneficial to the negro at the south may be doubted.
When most of the southern states were restored, conditions were laid
down similar in most respects to the conditions prescribed for Arkansas, which
we have already mentioned. These conditions were intended to fasten negro
suffrage permanently on the reconstructed states; but the terms of the
conditions were so sweeping and comprehensive, that, if enforced, they would
prevent any and every alteration in the qualifications for voting. Though the
fourteenth amendment allowed the states to decide what the basis of suffrage
should be — subject to a contingent reduction of representation — the
states thus restored were to be perpetually restrained from exercising that
very right of determination. Amid all the unnecessary and intemperate measures
passed during this dismal decade, no other measures seem so unnecessary or so
absurd as these so-called conditions. If congressmen did not know they were
both unjust and unconstitutional, their ignorance is not a very satisfactory
excuse.
We should notice that the fifteenth amendment did not annul the second
section of the fourteenth amendment. There still remained with the individual
states the power to modify their suffrage laws, provided that no discrimination
was made because of race, color, or previous condition of servitude. Some of
the southern states at a later time prescribed qualifications for voting that
were in conflict with the terms of the "fundamental conditions", but did not on
their face run counter to the fifteenth amendment. No one, presumably, can
doubt the right of the states to make such alterations in their suffrage laws.
The constitution of Mississippi (1890, 1892), for example, provided that every
elector must be able to read any section of the state constitution or he must
be able to understand it, when read to him, or give a reasonable interpretation
of it.[5] Though these qualifications are applicable to blacks and
whites without discrimination, it may be easy enough in practice for election
officers to discover the inability of a negro to interpret a passage in the
constitution but to discover also remarkable sagacity and legal learning in a
white man. However that may be, the effect of these provisions, if honestly and
impartially applied, should remove ignorance from the ballot-box. As a
consequence, the congressional representation in any state prescribing these
qualifications can in theory probably be reduced,[6] if Congress can
determine the actual basis for such a reduction. But the subject has been in
oblivion for forty years.
No enactment that is obviously intended to avoid the restrictions of the
fifteenth amendment can be considered valid. The attempt was made in certain
states by inserting in their constitutions a provision commonly called the
"grandfather clause", declaring that certain prescribed qualifications for
voting should not apply to persons having the right to vote before a specified
date or to the descendants of such persons. These provisions would result in
admission to the polls of every person who was qualified to vote or whose
ancestor was qualified to vote at a time before the establishment of negro
suffrage; they would, therefore, subject negroes to qualifications and
restrictions not applicable to many whites. Such enactments were plainly a
subterfuge. In pronouncing a provision of the Oklahoma constitution to be
unconstitutional, the Court declared its inability to "discover how, unless the
prohibitions of the Fifteenth Amendment were considered, the slightest reason
was afforded for basing the classification upon a period of time prior to the
Fifteenth Amendment. Certainly it cannot be said that there was any peculiar
necromancy in the time named which engendered attributes affecting the
qualification to vote which would not exist at another and different period
unless the Fifteenth Amendment was in view."[7]
After the failure of impeachment, Johnson, though ignored by the men who
had sought his overthrow, had charge of his own cabinet, and some things he
could do without suffering more than maledictions from his enemies. They might
grumble, but he had the power to pardon and this power he exercised. On the
fourth of July, 1868, in order to promote and procure complete fraternal
reconstruction among the whole people, he issued a proclamation of amnesty,
granting pardon to all who directly or indirectly had participated in
rebellion, excepting such persons as might be under indictment. On Christmas
day, he proclaimed full pardon, without reservation. This pardon could not
relieve anyone from the disabilities laid down in the third section of the
fourteenth amendment. At sundry times, in later years, Congress passed acts for
partial removal of these disabilities, but not until 1898 were they entirely
removed.
With the inauguration of Grant (1869), the Republicans were in control
of the presidential office. But the election returns, though showing a large
electoral majority, did not indicate the unwavering support of a solid north
and unqualified readiness to approve the methods of Reconstruction. Out of a
total popular vote of 5,716,082, Seymour, the Democratic candidate, received
2,703,249. Among the states casting Republican electoral votes were most of the
southern states recently reconstructed. How these states would vote, when once
the whites obtained full control, was fairly plain — the emergence of a
"solid south", where the people would hold in memory the ignominy of a
Reconstruction they detested. Moreover, New York, New Jersey, and Oregon were
carried by Seymour, and the vote of Indiana, long to remain a doubtful state,
was too close to be comfortable; Connecticut was carried by only 3,000,
California by 500. How were the Republicans to be sure of subsequent success
unless they held securely in their hands the vote of the reconstructed south?
The newly-enfranchised negroes must be protected at the polls.
Unquestionably other matters — the deeds and misdeeds of the party
— affected in one way or another the strength of the party in the next few
years; the determination to pay the public debt, the preparation for resumption
of specie payments, and to some extent the tariff policy strengthened the
party's hold upon the country; but more helpful than all else was widespread
loyalty to the party that had "saved the union". One of the interesting and
significant changes which shows the nature of the party system as an instrument
of government is the fact that the Republican party became the conservative
party of the nation; it had begun its career in opposition to a powerful and
entrenched economic system, slavery, which had its grasp upon interests even
beyond the borders of the slave states; Republican policies of the early days
were disturbing and productive of anxiety among those not wishing to see the
waters of peace agitated. But it had become the natural home of competent and
effective business men and men of affairs; a party changes even its character
with the passing of time; it is deeply affected by its own successes.
In the years succeeding Grant's accession, it seemed to Republican
leaders that the well-being of their party depended on what they termed a fair
ballot, an honest count at the south, and an obedience in reality to the new
amendments. The process of Reconstruction had antagonized those elements among
the southern people who before the war had been most reluctant to break away,
and who, perhaps because many of them had been Whigs, had political and social
attitudes of mind which might possibly have prevented them from forming a solid
block with their old-time political opponents.[8] But now all those
wishing to get possession of the state governments and wrest control from the
carpetbaggers belonged to one party; all were Democrats. Probably under any
other system of Reconstruction the same results would have followed.
The negro had been given the ballot, partly, no doubt, because of
partisan zeal, but also because of a genuine idealism among a large portion of
the northern people and because the suffrage provided the freedmen with means
of protecting their new-found rights. The south could be ruled by bullets or by
ballots, by the federal army or by votes; but to use the army permanently was
only theoretically possible, and so Reconstruction was coupled with negro
suffrage; ballots were chosen instead of bullets. One of the things difficult
to understand is this apparent belief, held by plain citizens and shrewd
politicians, that the southern whites would yield supinely to the magic of the
ballot in the hands of black men, their former slaves. Hardly had the process
of Reconstruction been ended or supposedly ended before it became obvious that
voters must be protected by the army. These brief words sum up the history of
Grant's administration (1869-1877) as far as that history deals with the
south.
Such summing up omits details of stupid, extravagant, and venal state
legislatures in the southern states. It omits tales of disorder, riots, and
assassinations. It leaves out of consideration the determination of the
southern whites not to be governed by ignorance and their determination to have
a government and a social order directed and upheld by white men. This story
has been often told; it is a sorry and doleful tale. It is a story of the
unflinching decision of a competent people to get possession of their own
institutions and to manage their own affairs; if this could not be attained
except by violation of law, then the law must be violated; civilization, as the
south considered civilization, must be made secure despite the cruel and
disastrous legislation imposed upon the vanquished by victorious opponents. The
fact is, the southerners felt a deep repugnance to negro domination and they
did not enjoy being robbed of what substance had been left them; the best of
them were not willing, as were many of their compatriots in northern cities, to
accept with complacency that species of political banditry which was the
humiliating characteristic of American municipal life. They never failed to
proclaim undeviating objection to the "lapse of Caucasian civilization into
African barbarism"; they denounced the attempt to degrade the Caucasian race
and promote the African to authority. And if the south could in its turn be
ruthless and vindictive, that is a fact which needs no explanation. The least
we can do — and the most we can now do — is to lament the incapacity
of those in political authority at Washington to find in conjunction with the
best southern leaders a method of reform and restoration which would have
helped to make the south politically, socially, and in sentiment an integrant
part of an integral nation. Such a nation did not exist for a generation after
Appomattox. And so, though the nation was no longer half slave and half free,
it continued to be divided against itself.
It is not the historian's business, even when he is drawn into
disapproval of a course pursued, to be confident that some other course would
have been highly satisfactory in its effects. To a person standing at the forks
of a road and questioning which of the two branches of the road he should
follow, both routes may appear in most respects free from obstacles, and he
chooses the route appearing to be the more convenient and reliable. After he
has made his choice and obstacles impede his path, he is likely to think he
should have taken the other road; as a matter of plain fact, however, the one
road, the one taken, has actually disclosed its troublesome features; of the
other he knows little if any more than he knew before he made his choice; its
pains and its penalties cannot be known and can with no assurance be imagined.
The study of history shows the troubles of a route really followed; it does not
let us know what might have happened had the other way been taken. We are
entitled, however, to speculate. We have the right to assume as a lesson for
political conduct that an attitude of friendly and unvindictive interest in the
welfare of others will provide its substantial reward.
Grant's administration began auspiciously. His inaugural address spoke
earnestly of a desire to see the union fully restored and the prevalence of
good feeling throughout the nation. His conciliatory proposals were helpful in
bringing about the restoration of Virginia, Mississippi, and Texas. The
troubles in Georgia were especially acute, and, as we have seen, that state,
after much tribulation, was not readmitted until the midsummer of 1870. But on
the whole there appeared ground for hope that the worst was over and that a new
era of good feeling or at least a diminution of the existing suspicion and
hostility was at hand. But stormy times were ahead. Conditions in the southern
states, where the "carpetbag" governments were wasting the money of communities
already impoverished by war, were becoming intolerable. The Loyal Leagues,
which had been formed some years earlier to inculcate patriotism and to lead
the freedmen in the paths they should follow and were now largely composed of
negroes, gave enthusiastic if ignorant support to the "carpetbag" regime. Their
processes were not always gentle. By 1869 or 1870, they had been beaten at
their own game by the Ku Klux Klan, which stopped at nothing in its
determination to crush the "scalawags" and the "carpetbaggers", and to put the
negro "in his place".
With the purpose of protecting elections from violence, fraud, and
intimidation, Congress passed two "enforcement acts" (May 31, 1870, February
28, 1871). These acts may properly be considered together.[9] They
are elaborate and detailed, containing sundry provisions for the protection of
the voter and the polls. The first includes a reënactment of the Civil
Rights Act of 1866. Any brief discussion is rendered difficult by the
complexity of the acts; no general and inclusive judgment is possible because
portions were doubtless considered valid and others invalid. These acts were
intended to rest upon the enforcement sections of the three amendments, the
products of the war and Republican Reconstruction. In considering the question
of constitutional validity, we must bear in mind that the construction of the
war amendments was worked out only gradually by judicial decisions in the
ensuing years. The general principles resulting from the controversies and laid
down by the courts are of importance and of continuing interest; a word on that
subject is appropriate in this place.
The first section of the fourteenth amendment had been drawn with the
purpose of making the provisions of the Civil Rights Act of 1866 unquestionably
valid; and that section was intended to protect all persons in the possession
of civil rights and of equality under the law. The adoption of the fourteenth
amendment did not, however, make the thirteenth entirely valueless and
obsolete, for under that amendment the national government may proceed against
actual slavery or involuntary servitude, even if unsupported by any state
law;[10] but the misdeeds of individuals mentioned in the
enforcement acts can scarcely be looked upon as establishing servitude in any
proper or improper sense. And as far as these acts were directed against any
"person" who should endeavor to deprive another of his civil rights, the
legislation cannot be supported by the fourteenth amendment, as later decisions
made perfectly plain.
Those sections of the enforcement acts, that were primarily directed
against intimidation of voters and corruption at the polls, did not make proper
distinction between elections at which representatives to Congress were chosen
and those which were solely state elections; and there was no suitable
recognition of the limits of congressional power under the fifteenth amendment.
The general principles as later announced by the Court may be briefly
summarized. Without regard to the war amendments, Congress has authority to
legislate for order at the polls and for the sanctity of the ballot when
representatives to Congress are chosen. This power has been based in part on
the constitutional clause empowering Congress to make regulations concerning
the times, places, and manner of holding elections;[11] but the
reasoning of the Court points on the whole to the power and the duty of the
national government to protect itself, and not merely to a power derived from
any specific clause in the Constitution. "The government of the United States",
the Court said, "is no less concerned in the transaction than the State
government is. It certainly is not bound to stand by as a passive spectator,
when duties are violated and outrageous frauds are committed." The Court went
so far as to say, "The objection that the laws and regulations, the violation
of which is made punishable by the acts of Congress, are State laws and have
not been adopted by Congress, is no sufficient answer to the power of Congress
to impose punishment.... The imposition of punishment implies a prohibition of
the act punished." [12] The fact that state officers are elected at
the same time that federal representatives are chosen is no reason for holding
federal legislation improper. But the national government has no right to
regulate purely state elections, except as far as is appropriate for the
enforcement of the fifteenth and nineteenth amendments.[13] And the
enforcement justified by these amendments must be directed against state
action, that is to say, action provided by state law or action performed by
state officials under color of law; for the amendments refer not to individual
conduct but place a specific restriction upon the United States and every
state.[14]
In April, 1871, the Ku Klux Act was passed. Its purpose was to subdue
the disorder in the south and to protect the freedmen from violence and
intimidation. In some sections the conditions were intolerable; though the
southern whites were prepared to overcome negro domination by any and every
available method, the more substantial members of the southern communities were
themselves troubled by the disorder.[15] A portion of the act, which
doubtless was of supreme importance in the minds of the framers, made it an
offense for two or more persons to conspire or go in disguise upon the public
highway or upon the premises of another for the purpose of depriving any person
or class of persons of the equal protection of the laws, or for the purpose of
hindering the authorities of any state from securing to all persons the equal
protection of the laws. This portion of the statute was an assumption of
unconstitutional power.[16]
But the act also authorized the President to use the army and navy for
the suppression of insurrection and domestic violence, and under certain
circumstances to suspend the writ of habeas corpus. A method was thus provided
for crushing the Ku Klux — but more than this: troops could be used and
were used to uphold the carpetbag governments, which had entered upon a drama
of extravagance and waste with scrupulous attention to every opportunity for
private gain and public discredit. Constitutional or unconstitutional, the law
had some considerable effect in checking violence, and the troops succeeded in
stamping out the more brutal activities and unpleasant enterprises of the Ku
Klux.
Throughout the land political conditions in the early seventies
presented a dreary picture. The war had left a legacy of corruption and
venality. We cannot know, of course, whether the northern people had actually
been so affected by bloodshed and by the hatred engendered by Reconstruction
that they were no longer sensitive to abuses that should have aroused their
anger and moved them to action. Some of them were too busy to be bothered by
political corruption. They were engaged in industrial affairs, building
railroads, entering on new phases of corporate enterprise. Thousands upon
thousands of public-spirited and conscientious men were still certain that the
course of Reconstruction had been just and honorable, that the negro must not
be left to his fate at the hands of "rebels", and that right and duty pointed
to the need for direction and control by the federal government; they believed
that the public credit should be made secure and, in general, the country
should be saved from disaster which they thought would be brought on by the
machinations and incompetence of the Democracy. About the time when Congress
was engaged in passing legislation for the crushing of the Klan and was also
protecting the corrupt carpetbag governments in the south, New York City, in a
spasm of civic righteousness, pounced upon Tweed, who had been gorged to
capacity with ill-gotten gain.[17]
The platform of the Liberal Republican party in 1872 demanded the
immediate and absolute removal of all disabilities imposed on account of the
rebellion, and it announced the belief that universal amnesty would result in
peace. It asked for local self-government, with impartial suffrage, which would
"guard the rights of all citizens more securely than any centralized power". It
declared also for the supremacy of the civil over military authority and the
freedom of persons under the protection of the habeas corpus. It demanded "for
the individual the largest liberty consistent with public order, for the State
self-government, and for the nation a return to the methods of peace and the
constitutional limitations of power." The Republican platform declared for the
enforcement of the recent amendments and asserted that complete liberty and
exact equality in the enjoyment of all civil, political, and public rights
should be maintained by efficient and appropriate state and federal
legislation. Congress and the President, it said, deserved the thanks of the
nation for the suppression of violent and treasonable organizations in certain
lately rebellious regions and for the protection of the ballot-box. On the main
question of Reconstruction — or what remained of Reconstruction — the
two parties were distinctly opposed.
The Liberal Reform movement was apparently a failure. Greeley was badly
beaten. And yet failure it can hardly be called; the outcry against public
corruption and the demand for a more conciliatory policy toward the south must
have had some effect; at all events, the ruling party lost a considerable
number of its most competent members. And events soon showed that members of
the old party, though still affected by appeals of the politician and still
indignant at southern "atrocities", were growing weary and heartsick, believing
that military rule at the south and governments imposed upon the southern
people by their conquerors should not continue. So, perhaps, the year 1872 may
be looked upon as the beginning of the end. It was high time. Two years later
the Republicans suffered a decisive defeat in the congressional elections.
Though the defeat was no doubt caused largely by the disastrous panic of 1873,
the party must henceforth watch its defenses and study the terrain with care,
or it was doomed to defeat in the next presidential campaign.
There was evidence that the war was finished when Charles Sumner
declared in the Senate, "... it is contrary to the usage of civilized nations
to perpetuate the memory of civil war", and proposed that "the names of battles
with fellow-citizens" be no longer "continued in the Army Register, or placed
on the regimental colors of the United States." And perhaps there was even
greater proof of the dying of old animosities when L. Q. C. Lamar of
Mississippi, eulogizing Sumner in Congress, said, "Charles Sumner was born with
an instinctive love of freedom.... To a man thoroughly permeated and imbued
with such a creed and animated and constantly actuated by such a spirit of
devotion, to behold a human being or a race of human beings restrained of their
natural rights to liberty, for no crime by him or them committed, was to feel
all the belligerent instincts of his nature roused to combat. The fact was to
him a wrong which no logic could justify." Though the day of new force bills
was gone by, Congress did not quite surrender the hope of compelling, by direct
legislation, a recognition of the civil rights and, in large measure also, the
social equality of the negro. Sumner died in 1874, but, as a memorial to him
and his ambitions, Congress passed the Civil Rights Act the next year. It
declared all persons within the jurisdiction of the United States entitled to
the full and equal enjoyment of the accommodations and privileges of inns,
public conveyances, theaters, and other places of public amusement, "subject
only to the conditions and limitations established by law, and applicable alike
to citizens of every race and color, regardless of any previous condition of
servitude." It made the act of any person denying to any citizen such full
enjoyment and privilege a misdemeanor punishable by fine or imprisonment, and
it allowed the offended party to sue for civil damages. It proved to be an
instance of misdirected legislative zeal. Eight years after its passage the
essential portions of the act were pronounced unconstitutional by the Supreme
Court.[18]
It was held by the Court to assume the existence of federal power
unwarranted by either the thirteenth or the fourteenth amendment. "It would be
running the slavery argument into the ground," the Court declared, "to make it
apply to every act of discrimination which a person may see fit to make as to
the guests he will entertain, or as to the people he will take into his coach
or cab or car...." [19] And, while positive rights and privileges
are undoubtedly secured by the fourteenth amendment, they are secured by way of
prohibitions against state laws and state proceedings affecting these rights
and privileges. "... it is proper to state that civil rights, such as are
guaranteed by the Constitution against State aggression, cannot be impaired by
the wrongful acts of individuals, unsupported by State authority in the shape
of laws, customs, or judicial or executive proceedings." [20]
The principle laid down in the decision was not altogether
novel,[21] but it made perfectly clear that the fourteenth amendment
was not to be enforced by congressional acts directed against the misconduct of
individual citizens unsupported by the authority of the state. The case ranks
in importance with the Slaughter-House Cases (1873), an account of which will
be given in a succeeding chapter. Worthy of notice, too, is the exercise of the
power of the Court to declare a congressional act unconstitutional. By this
time there was a considerable body of precedent for the use of that
power;[22] but the significance of this case lies in the fact that,
had the Court not possessed the power or had the power not been used, the
nature of our composite system of government would have been altered — we
might almost say destroyed — by a statute based on the supposition that
Congress could at will regulate individual conduct and personal relationships.
The principle and the practice of judicial review of legislative acts have
often been objected to; the courts have been charged with assuming
unconstitutional power. But no one has very successfully pointed out how the
structure of the federal state can be preserved without judicial determination
of legislative limits. These two Court decisions — the Slaughter-House
Cases in 1873 and the Civil Rights Cases in 1883 — illustrate the way in
which judicial power may preserve the essentials of federalism.
The greenback question, which was a matter of great public interest in
the years of Grant's administration and, indeed, continued for a time to
embarrass politicians and trouble economists after his retirement, was a matter
of constitutional as well as economic importance. In 1870 the Supreme Court,
three justices dissenting, declared that the acts passed during the war making
all United States notes legal tender were invalid in so far as they applied to
preexisting debts.[23] There were many persons not content with the
decision; they wished a full recognition of congressional power. At that
critical moment, Grant appointed two new justices to the Court — Joseph P.
Bradley and William Strong. It would be difficult to question seriously the
character or the capacity of these men. But the assertion was made — and
the suspicion probably still lingers — that the appointments were made for
the express purpose of obtaining a reversal of the Court's decision.
The President was said to have deliberately "packed" the Court. There
appears to be no substantial ground for this charge, but it brings to our
attention the ease with which the Court can be altered by a president
determined to have his way, if a majority of the Senate be with him. And one is
tempted to say in addition, that, if Grant had taken that step for the express
purpose of bending the Court to his will, it would have been only an extreme
and peculiarly obnoxious example of a practice indulged in, when nominations of
judges are under consideration in the Senate. For in those discussions we find
many examples of opposition or advocacy, based not upon the character and
learning of the person proposed for the bench, but upon the nature of his
decisions in a lower court or upon his supposed attitude of mind toward
especially significant policies. There is nothing but a high regard for the
ethics, an appreciation of the duty of public servants, to restrain them from
using the powers of appointment to attain their ends. But this is a delicate
and difficult question. We have already seen its appearance in other
connections.[24] The present writer is not prepared to deny that
circumstances may arise when the composition of the Court and the effect of a
particular appointment to its membership may properly be taken into
consideration. At all events, such considerations are certain to have
weight.
The Court, with its new members, rendered a decision overruling in part
the previous decision and upholding the power to make paper money legal tender
as applied to contracts made both before and after the passing of the
legislation.[25] Justice Strong read the opinion of the Court, in
which Justice Bradley concurred though giving an extensive opinion of his own.
There was strong and vigorous dissent, and these few words may be taken from
the dissent of Justice Field as illustrative of the atmosphere of the
court-room: "In the discussions which have attended this subject of legal
tender there has been at times what seemed to me to be a covert intimation,
that opposition to the measure in question was the expression of a spirit not
altogether favorable to the cause, in the interest of which that measure was
adopted. All such intimations I repel with all the energy I can express.... But
I do not admit that a blind approval of every measure which they may have
thought essential to put down the rebellion is any evidence of loyalty to the
country. The only loyalty which I can admit consists in obedience to the
Constitution and laws made in pursuance of it. It is only by obedience that
affection and reverence can be shown to a superior having a right to command.
So thought our great Master when he said to his disciples: 'If ye love me, keep
my commandments.' " [26]
While both Strong and Bradley; spoke of the necessities of the times
when the acts were passed, the constitutionality was not made to rest on the
war power as the distinct basis. Bradley said, "I do not say that it is a war
power, or that it is only to be called into exercise in time of war; for other
public exigencies may arise in the history of a nation which may make it
expedient and imperative to exercise it." The two opinions were expressive of
very decided nationalism and of a broad construction of the Constitution.
Thirteen years later (1884) the Court announced the constitutional power to
make treasury notes legal tender in time of peace as well as
war.[27]
After the publication of this book an article by Sidney Ratner appeared
in the Political Science Quarterly (Vol. L, pp. 343-358): "Was the
Supreme Court Packed by President Grant?" This article gives a passage from the
manuscript diary of Hamilton Fish, under the date, October 28, 1876. Fish says
that at that time Grant said to him, with reference to the charges then being
made, "it would be difficult for him to make a statement; that although he
required no declaration from Judges Strong and Bradley on the constitutionality
of the Legal Tender Act, he knew Judge Strong had on the Bench in Pennsylvania
given a decision sustaining its Constitutionality and he had reason to believe
Judge Bradley's opinion tended in the same direction; that at that time he felt
it important that the Constitutionality of the Law should be sustained, and
while he would do nothing to exact anything like a pledge or expression of
opinion from the parties he might appoint to the Bench, he had desired that the
Constitutionality should be sustained by the Supreme Court; that he believed
such had been the opinion of all his Cabinet at the time." To the reader it may
appear to be mere quibbling, if the present writer suggests that when anyone,
more than six years after an event, declares what he had in mind at the earlier
time, his words must be read with at least a glimmer of suspicion. Ratner also
calls attention to the assertion in G. S. Boutwell's Reminiscences
(1902), that Chief Justice Chase, about two weeks before the decision in
Hepburn v. Griswold was rendered, had told him what the decision would
be. The importance of this fact, if the Reminiscences are to be
literally believed, is that it tends to discredit the assumption that Grant was
ignorant of the character of the decision when he sent the names of the two men
to the Senate; for if Boutwell, the Secretary of the Treasury, knew, perhaps he
informed Grant. The statement in the Reminiscences is not easily
reconciled with a statement Boutwell had made to George F. Hoar six years
earlier (1896). After saying that in his choice of the two justices Grant was
influenced by the belief that they would uphold the Legal Tender Acts, Ratner
declares, "Since he did not exact any pledge or expression of opinion from
either Bradley or Strong before nominating them, it is not just to say that he
'packed the court,' or that the new judges were 'creatures of the President
placed upon the Bench to carry out his instructions.' "
The reader cannot obtain from a brief note like this all the evidence
for an opinion; but he is entitled to be informed of the new evidence. My own
opinion, put in the shortest possible terms, is that Grant would not have
appointed two men who, he believed, would declare the Legal Tender Acts void.
At the present writing, I am unwilling to make a more positive statement.
[1] Ex parte McCardle, 7 Wallace 506 (1869).
[2] See H. V. Ames, The Proposed Amendments to the
Constitution, Am. Hist. Asso. Report for 1896, II, p. 300; T. M.
Cooley, The General Principles of Constitutional Law (4th ed), p. 257
and references there given. Oregon withdrew ratification even after
promulgation of the amendment by the Secretary of State. Ames, op. cit.,
p. 377.
[3] The extent to which some enthusiasts were prepared to go
is illustrated by an amendment championed by James Brooks of New York in 1869:
"The right of any person of the United States to vote shall not be denied or
abridged by the United States or any State by reason of his or her race, sex,
nativity, or age when over twelve years [!], color or previous condition of
slavery...." Ibid., pp. 237-238.
[4] New York, counted among the twenty-nine, repealed her
ratification — the repeal being of doubtful validity; and Georgia, not as
yet fully in possession of her rights in the union, accepted the amendment
— a fact stated by the Secretary in a separate paragraph. The Secretary
apparently counted the resolution of repeal as invalid.
[5] See Williams v. Mississippi, 170 U. S. 213, 225
(1898), where the Court said that the constitution and the statutes of
Mississippi do not on their face discriminate between the races, but intimated
that "evil" in administration was possible under them. There still remains
since the passage of the nineteenth amendment the right to prescribe
qualifications for voting, provided there is no discrimination contrary to
either the fifteenth amendment or the nineteenth amendment.
[6] Attention should be called to the argument to the effect
that the requirement of a capitation tax or of the ability to read is not a
denial of the suffrage. See Cooley, op. cit., p. 336.
[7] Guinn v. United States, 238 U. S. 347, 365 (1915).
See also Myers v. Anderson, 238 U. S. 368 (1915), where a state statute
was held void. A state statute excluding negroes from voting in Democratic
party primaries was declared a violation of the equality clause of the
fourteenth amendment. Nixon v. Herndon, 273 U. S. 536 (1927). See also
Nixon v. Condon, 286 U. S. 73 (1932).
[8] Benjamin H. Hill said in 1871: "I tell you frankly that
after the war ended, we, the old whigs and the Union men, expected to take
control of affairs down here; that was our expectation, and I think we would
have done it if you had allowed us to do so. I will tell you candidly that I
think very likely if the republican party had been ... magnanimous to the old
whigs after the war, in extending us privileges, ... it might have built up a
republican party in the South, and given us the control of this country."
Quoted in Fleming, Documentary History of Reconstruction, II, p. 91.
[9] The acts may be found in Fleming, Documentary History
of Reconstruction, II, p. 102 ff. "By act of February 8, 1871, a rigorous
system of Federal supervision over congressional elections was established.
This was designed not only to supplement the weakness and inefficiency of the
radical state governments in the South, but also to counteract the fraudulent
and violent practices which prevailed in New York and other large cities of the
North." Dunning, Reconstruction, p. 186.
[10] "We entertain no doubt of the validity of this
legislation [referring to federal acts against peonage], or of its
applicability to the case of any person holding another in a state of peonage,
and this whether there be municipal ordinance or state law sanctioning such
holding. It operates directly on every citizen of the Republic, wherever his
residence may be." Clyatt v. United States, 197 U. S. 207, 218 (1905).
"Under the Thirteenth Amendment, the legislation, so far as necessary or proper
to eradicate all forms and incidents of slavery and involuntary servitude, may
be direct and primary, operating upon the acts of individuals, whether
sanctioned by State legislation or not...." Civil Rights Cases, 109 U. S. 3, 23
(1883). "The things denounced are slavery and involuntary servitude.. , . All
understand by these terms a condition of enforced compulsory service.... A
freeman has a right to be protected in his person from an assault and battery.
He is entitled to hold his property safe from trespass or appropriation, but no
personal assault or trespass or appropriation operates to reduce the individual
to a condition of slavery." Hodges v. United States, 203 U. S. 1, 16-18
(1906). See also, for an interpretation of the scope of the amendment,
Robertson v. Baldwin, 165 U. S. 275 (1897); Bailey v. Alabama,
219 U. S. 219 (1911).
[11] Art. I, sec. 4, par. I. To take charge to any extent of
an election for the choice of presidential electors, if representatives are not
chosen at the same time, might in theory be doubted, except as such charge is
possible under the fifteenth, and now the nineteenth, amendment. See McPherson
v. Blacker, 146 U. S. 1, 35 (1892), where the Court said: "In short, the
appointment and mode of appointment of electors belong exclusively to the
States.... They are, as remarked by Mr. Justice Gray in In re Green, 134
U. S. 377, 379, 'no more officers or agents of the United States than are the
members of the state legislatures when acting as electors of Federal
senators....'"
[12] Ex parte Siebold, 100 U. S. 371, 388 (1880). Referring
to various sections of the revised statutes, and especially to sections 5515
and 5522, the Court said, "These portions of the Revised Statutes are taken
from the act commonly known as the Enforcement Act, approved May 31, 1870 ...
and from the supplement of that act, approved February 28, 1871. They relate to
elections of members of the House of Representatives, and were an assertion, on
the part of Congress, of a power to pass laws for regulating and superintending
said elections, and for securing the purity thereof, and the rights of citizens
to vote thereat peaceably and without molestation. It must be conceded to be a
most important power, and of a fundamental character." Ibid., 382. See
also Ex parte Yarbrough, no U. S. 651 (1884); Wiley v. Sinkler, 179 U.
S. 58 (1900).
[13] United States v. Reese, 92 U. S. 214 (1876);
Karem v. United States, 121 Fed. Reporter 250 (1903); United States
v. Belvin, 46 Fed. Reporter 381 (1891). The power of Congress to
legislate at all upon the subject of voting at purely state elections is
entirely dependent upon this amendment (fifteenth).
[14] "These authorities show that a statute which purports to
punish purely individual action cannot be sustained as an appropriate exercise
of the power conferred by the Fifteenth Amendment upon Congress to prevent
action by the State through some one or more of its official representatives,
and that an indictment which charges no discrimination on account of race,
color or previous condition of servitude is likewise destitute of support by
such amendment." James v. Bowman, 190 U. S. 127, 139 (1903). The
amendment "relates solely to action by the United States or by any State and
does not contemplate wrongful individual acts. While Congress has ample power
in respect to elections of Representatives to Congress, § 5507 cannot be
sustained under such general power because Congress did not act in the exercise
of such power." Ibid, (syllabus).
[15] Concerning the Ku Klux movement in general, Fleming
says: "The first results of the movement were good; the later ones were both
good and bad. The early work of the secret orders quieted the negroes, made
life and property safer, gave protection to women, stopped burnings, forced the
Radical leaders to be more moderate, made the negroes work better, drove the
worst of the Radical leaders from the country and started the whites on the way
to regain political supremacy. The evil results were those that always follow
such movements.... The movement lasted under one form or another until the
close of Reconstruction, and the lynching habits of today are due largely to
conditions, social and legal, growing out of Reconstruction." Fleming, op.
cit., II, pp. 328-329. The movement was at its height in its most effective
form from 1868 to 1870. Ibid., p. 328. Rhodes calls attention to the
fact that in South Carolina there were 1207 cases pending in 1872, and the next
year 617. History of the United States, VI, p. 318. These numbers give
us some idea of the extent of federal action.
[16] "Section 5519 [originally a part of section 2 of the Ku
Klux Act of 1871], according to the theory of the prosecution, and as appears
by its terms, was framed to protect from invasion by private persons, the equal
privileges and immunities under the laws, of all persons and classes of
persons. It requires no argument to show that such a law cannot be founded on a
clause of the Constitution whose sole object is to protect from denial or
abridgment, by the United States or States, on account of race, color, or
previous condition of servitude, the right of citizens of the United States to
vote." United States v. Harris, 106 U. S. 629, 637 (1883). It was
asserted by the government in this case that the legislation in question found
its warrant in the first and fifth sections of the fourteenth amendment, but
the Court pointed out that such contention could not stand, and referred to
United States v. Cruikshank, 92 U. S. 542 (1876); Virginia v.
Rives, 100 U. S. 313 (1880). In the latter case the Court said, "The provisions
of the Fourteenth Amendment ... we have quoted all have reference to State
action exclusively, and not to any action of private individuals."
Ibid., 318.
[17] There was little prospect of reform within the party and
little attention given to public corruption when enthusiastic party men would
say, "Better the worst Republican than the best Democrat." For conditions in
the public service see Oberholtzer, op. cit., II, ch. XVI; III, chs.
XVIII-XIX.
[18] Civil Rights Cases, 109 U. S. 3 (1883).
[19] Ibid., 24.
[20] Ibid., 17.
[21] See, for example, Virginia v. Rives, 100 U. S.
313 (1880).
[22] Before 1865, there was one case in which the justices of
a circuit court had declared an act void — Hayburn's Case, 1792. There
were two Supreme Court decisions, Marbury v. Madison, 1803, and the Dred
Scott case, 1857. Beginning with 1865 and ending with the Civil Rights Cases,
there were fifteen. But in comparison with this decision, all the rest of these
fifteen, save perhaps one, are not of vital importance.
[23] Hepburn v. Griswold, 8 Wallace 603 (1870).
[24] Notice Lincoln's attitude toward the Court and the Dred
Scott case.
[25] Legal Tender Cases (Knox v. Lee), 12 Wallace 457
(1871).
[26] Ibid., 680-681.
[27] Juilliard v. Greenman, no U. S. 421. The power in
question was especially associated with the power to borrow money and to
provide a national currency.
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